William F. AbramsMay 22, 2013Page 2
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Second, you contend that the Court's construction of "calculated position information" in the 694 and988 patents also requires systematic data collection using scanning vehicles. The Court construed"calculated position information" in the 694 and 988 patents to mean "
[e]stimated physical location(s) of Wi-Fi access points calculated using characteristics of signals transmitted by such Wi- Fi access points, which Wi-Fi access points have been collected systematically, i.e., in a manner inwhich all the streets in target area are covered.
" But while the 694 and 988 claims require that thedatabase include records for "substantially all Wi-Fi access points in the target area," the 657 patentclaims only require "a plurality of Wi-Fi access points in the target area." Therefore, there is nological reason that "calculated position information" in the 657 patent claims would require that Wi-Fi access points be calculated in the manner required by the Court's construction of that term for the694 and 988 patents.Third, you also contend that statements made by Skyhook's prior counsel at the claim constructiontutorial for the 694 and 988 patents stand for the proposition that the claims of the 657 patent relateonly to the collection of Wi-Fi access point location data using scanning vehicles and not to access point data collected from user devices. We disagree that the statements made at the tutorial arelimiting in the way you contend. Those statements were clearly not made with respect to the 657 patent claims, and in fact, Skyhook's prior counsel expressly limited its tutorial statements, whichGoogle now relies upon, to the 694 and 988 patents by referring repeatedly to "these patents" or "these two patents."
Google's May 1, 2013 Letter at 2;
see also, e.g.
, Hrg. Tr. at 47:16-17("THE COURT: But neither patent uses, or maybe the technology doesn't call for it under anycircumstances, whatever data may be returned from the user, that is, the person that they're trying tofind based on where that person is found. MR. LU: The two, these two patents do not.
There areother implementations and Skyhook does in fact use that data
.") (emphasis added). The claims of the 657 patent were not at issue during the tutorial or the claim construction hearing on the 694 and988 patent, and as discussed above, differ in important ways from the claims that were the subject of the then-pending claim construction. In any event, those statements of course are not evidence withrespect to the meaning of any claims, were made in a non-adversarial proceeding, and cannot formthe basis of a judicial estoppel.Moreover, even if collection of Wi-Fi access point data by user devices was not always systematic – something Skyhook does not concede – the sheer volume of deployed Android devices nowcollecting data from Wi-Fi access points (well over 200 million Android smartphones and tabletshave now been activated in the US), as well as the establishment of Google's geolocation databasesand services through the systematic collection by CityBlock vehicles in the past, makes currentcollection by those devices systematic, or at a minimum, equivalent to systematic.To be clear, Skyhook contends that the claims of the 657 patent, as well as all other assertedSkyhook patents, were and are infringed by Google, both before and after Google asserts it ceased itsCityBlock collection of Wi-Fi access point data.
Case 1:10-cv-11571-RWZ Document 176-3 Filed 06/10/13 Page 3 of 4